Bombay High Court
Asma W/O. Adil Chaus vs The State Of Maharashtra And Others on 21 October, 2022
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.919 OF 2022
Asma W/o Adil Chaus,
Age-29 years, Occu:Housewife,
R/o-2-1-55, Behind Balak Mandir,
Chaus Colony, Aurangabad
...PETITIONER
VERSUS
1) The State of Maharashtra,
Through Secretary, Home Department,
Mantralaya, Mumbai,
2) Section Officer,
Home Department,
Mantralaya, Mumbai,
3) Inspector General of Prisons,
Pune,
4) Superintendent,
Harsul Jail, Aurangabad,
5) Police Commissioner,
Aurangabad.
...RESPONDENTS
...
Mr.Rupesh A. Jaiswal Advocate for Petitioner.
Mr.R.V. Dasalkar, A.P.P. for Respondent Nos. 1 to 5.
...
CORAM: SMT. VIBHA KANKANWADI AND
RAJESH S. PATIL, JJ.
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DATE OF RESERVING ORDER : 22nd SEPTEMBER 2022
DATE OF PRONOUNCING ORDER : 21st OCTOBER 2022
ORDER [PER SMT. VIBHA KANKANWADI, J.] :
1. The petitioner, who is wife of a detenu, seeks to challenge
order dated 2nd June 2022 passed by respondent No.2 and
further prays for directions to be given to the respondents to
transfer her husband from Nagpur Central Prison to Aurangabad
Central Prison.
2. Petitioner is the wife of Adil Bin Hamad Chaus, who has
been detained under the Maharashtra Prevention of Dangerous
Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous
Persons, Video Pirates, Sand Smugglers and Persons Engaged in
Black Marketing of Essential Commodities Act, 1981 (for short
"MPDA Act"). The order of detention was passed on 8 th
November 2021 and it is for one year. It has been stated that
abruptly respondent No.2 has transferred Adil, husband of the
petitioner, from Aurangabad Central Prison to Nagpur Central
Prison without an opportunity of hearing given to him. The
distance between Aurangabad to Nagpur is more than 450 Kms.
and it is not possible for the petitioner to go to Nagpur to meet
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her husband. The father of Adil is also 82 years old and suffering
from various diseases. Such transfer is against the provisions of
law and violative of the fundamental rights even to the prisoner
and therefore, such order deserves to be set aside and he should
be brought back to Aurangabad Central Prison.
3. Heard learned Advocate Mr. Jaiswal for the petitioner and
learned APP for the respondents.
4. It has been vehemently submitted on behalf of the
petitioner that the impugned order dated 2 nd June 2022 would
clearly show that no opportunity was given to Adil to put forth
his say. In State of Andhra Pradesh vs. Challa Ramkrishna
Reddy, 2000 AIR(SC) 2083, it has been held that, a prisoner
whether convict, under trial or detenu, have all fundamental
rights including right to life and other basic human rights. It has
been further held that, the State has no authority to violate such
rights, as the prisoner, be he a convict or under trial or a detenu,
does not cease to be a human being, even when lodged in the
jail, he continues to enjoy all his fundamental rights. Learned
Advocate for the petitioner has further relied on the decision in
Sunil Batra (II) vs. Delhi Administration, (1980) 3 SCC
488, as well as decision in A.K. Roy and others vs. Union of
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India and another, AIR 1982 SC 710, lays down that distant
place of transfer be avoided even for a detenu or prisoner.
Further reliance has been placed on the decision in M/s. Kranti
Associates Pvt. Ltd. and another vs. Sh. Masood Ahmed
Khan and others, 2010(6) ALL MR 992, wherein it is held
that, every order should be speaking order. Further, in
Suryakant @ Mukesh Laxman Dhotre vs. the
Commissioner of Police, Solapur and others, 2018 ALL MR
(Cri) 2004, it has been held that in detention matter procedural
safeguard's compliance is very necessary.
5. It has been further argued on behalf of the petitioner, after
considering the affidavit-in-reply filed on behalf of the
respondents, that two cases are stated to have been filed
against Adil after his detention order, one is under Section 8,
22(a), 29 of the Narcotic Drugs and Psychotropic Substances
Act, 1985 (for short "NDPS Act") and under Section 186 of the
Indian Penal Code bearing Crime No.78 of 2022, and another is
N.C. Complaint bearing No.152 of 2022 under Section 506 of the
Indian Penal Code with Harsool Police Station, Aurangabad. Even
in those cases also right to speedy justice is available to Adil and
his abrupt transfer to Nagpur Central Prison is violative of his
fundamental rights. It has been contended by the prosecution /
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State that report was given to the Government about 3½
months prior to the order. If the State is acting such belatedly,
then it cannot be stated that the State is protecting the rights of
citizens. Even if it is accepted for the sake of arguments that Adil
had misbehaved with the jail authorities, yet the Prison Act
makes provision for the same and he can be punished. Reliance
has been placed on Gajanan Eknath Murle vs. State of
Maharashtra, 2008 All MR (Cri) 1048, wherein it has been
held that in case a prisoner commits a prison offence, the
Superintendent of Police before proposing punishment is
expected to give show cause notice to the prisoner and after
considering the reply, if any, and after giving personal hearing to
the prisoner pass appropriate order either accepting the
explanation and exonerating the prisoner for committing alleged
prison offence or propose punishment considering the cause
shown by the petitioner. Learned Advocate for the petitioner,
therefore, prayed for allowing the Petition on the basis of the
prayers.
6. Learned APP has strongly opposed the Petition and relied
on the affidavit-in-reply filed by the Superintendent, Central
Prison, Aurangabad, Smt. Aruna Arjunrao Mugutrao. It has been
stated that Adil was arrested by Begampura Police Station,
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Aurangabad in Crime No.505 of 2021 under Section 353, 504,
506 read with Section 34 of the Indian Penal Code on 3 rd October
2021. Thereafter, as per the order passed by the Commissioner
of Police, Aurangabad on 8th November 2021, he was detained
under the provisions of MPDA Act. The order was served on him
and the compliance has been made. The period of detention is
for 12 months from the date of detention. It is stated that
detenu was not abiding the rules and regulations of prison and
he was misbehaving with medical officer, prison officers and
guarding staff. Report was submitted to the learned Judicial
Magistrate First Class-2, Aurangabad in respect of the same. Non
cognizable offence under Section 506 of the Indian Penal Code
had also came to be registered against Adil and while he was
under escort taken to Court, he was found along with one lady,
misbehaving with the police escort. Though the lady escaped,
the detenu was found possessing narcotic drug. Under such
circumstance, the report was submitted to the Under Secretary,
Home Department (Special), Mantralaya, Mumbai on 18 th
February 2022 with a request to change the detention place.
Accordingly the order has been passed.
7. Learned APP has taken us through the documents in the
form of the report that was submitted against Adil, First
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Information Reports those have been lodged against him,
especially the First Information Report under the NDPS Act. It
appears that Adil, husband of the petitioner was taken to Court
for his production in police escort, yet it is stated that narcotic
drug was found in his possession. Taking into consideration such
activities the place of detention of Adil has been changed.
8. At the outset, there cannot be disagreement that even the
prisoners have fundamental rights. The ratio in State of Andhra
Pradesh vs. Challa Ramkrishna Reddy, 2000 AIR(SC)
2083, (supra), by the Apex Court is also reiterated in
subsequent decisions of the Apex Court and the State is required
to honour such fundamental rights. Of course, those
fundamental rights are not absolute rights, those come with
restrictions. Under such circumstance it is now required to be
seen as to whether the action taken by the State in this case was
justified. It has been specifically stated by the learned Advocate
for the petitioner that the petitioner or the detenu Adil do not
want to challenge the said detention order under MPDA Act. It is
the order which has been passed for the transfer of place of
detention dated 2nd June 2022 that has been challenged in this
Petition. In this respect, the documents which have been
produced along with the affidavit-in-reply on behalf of the State
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would show that the affiant Aruna Mugutrao filed report about
the alleged misbehaviour of detenu Adil on 18 th February 2022,
yet the action has been taken by the State on 2 nd June 2022.
There is no explanation on behalf of the State, as to why such
belated action is taken if at all the acts of detenu were so serious
in nature. At least after about four months the action has been
taken. This Court agrees with the submission that an opportunity
of being heard ought to have been accorded to Adil by the State
before passing the impugned order. Further, even if such transfer
was in the interest of the State, yet the State could not have
given a go-by to the ratio laid down in Sunil Batra (II) vs.
Delhi Administration, (supra), as well as in A.K. Roy and
others vs. Union of India and another, (supra). There are
other prisons nearby Aurangabad wherein the detenu could have
been detained or placed. That option was never explored by the
State. Impugned order is also not a speaking order. It does not
make it clear as to why that decision was taken. It also does not
refer to the report that was submitted by affiant Aruna
Mugutrao. No doubt the place of detention can be changed by
the State but before that the principles of natural justice will
have to be adhered to.
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9. We are aware about the fact that in spite of the fact that
Adil was under escort, offence under NDPS Act came to be
registered against him, so also already the offence under
Sections 353, 504, 506 read with Section 34 of the Indian Penal
Code is pending against him, therefore, it will not be proper to
bring him back to Aurangabad Central Prison, as the reports filed
by the medical officer, prison officers and guarding staff would
also state about his behaviour. No doubt there is power with the
Superintendent of Jail to punish such misbehaving prisoner, yet
we need not wait till the procedure ends. Under this
circumstance, it would be appropriate to direct respondent Nos.1
and 3 to transfer Adil to Jalna District Prison, Jalna, which is near
to Aurangabad. With these observations, following order is
passed:
ORDER
(I) Writ Petition stands partly allowed. (II) The impugned order dated 2nd June 2022, changing the place of detention of detenu Adil Bin Hamad Chaus to Nagpur Central Prison, Nagpur in place of Aurangabad Central Prison, Aurangabad, stands set aside to the extent of place. ::: Uploaded on - 21/10/2022 ::: Downloaded on - 22/10/2022 20:21:59 :::
cwp919.22 10 (III) Respondent Nos.1 and 3 are directed to transfer Adil Bin Hamad Chaus to Jalna District Prison, Jalna. (IV) Compliance of this order be made within a period of ONE WEEK of the date of this order.
(V) Parties to act upon authenticated copy of this order.
[RAJESH S. PATIL] [SMT. VIBHA KANKANWADI]
JUDGE JUDGE
asb/OCTP22
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